What’s Wrong With Obama’s Drone Policy

February 13, 2013

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People stand on the wreckage of a house destroyed by an air strike last year that was targeting al Qaeda-linked militants, in the southern Yemeni town of Jaar, February 1, 2013. Reuters/Khaled Abdullah

Imagine that Russian President Vladimir Putin had used remote-controlled drones armed with missiles to kill thousands of “enemies” (and plenty of civilians) throughout Asia and Eastern Europe. Imagine, further, that Putin refused to acknowledge any of the killings and simply asserted in general terms that he had the right to kill anyone he secretly determined was a leader of the Chechen rebels or “associated forces,” even if they posed no immediate threat of attack on Russia. How would the State Department treat such a practice in its annual reports on human rights compliance?

Conveniently, the State Department’s country reports leave out the United States. Otherwise, it might have to pass judgment on President Obama’s use of drones to kill thousands of our ”enemies,” and lots of civilians, many of them far from any battlefield. But as citizens in whose name the president is exercising this power, we need to pass judgment. The challenge is that Obama has kept so much of the policy and practice under wraps that it is almost impossible to do this. The leak of a Justice Department white paper defending the legality of killing even US citizens provides the most detailed look yet at this disturbing practice. The more we learn, the more troubling the practice is.

Some critics indiscriminately decry all drone strikes as “extrajudicial assassinations,” arguing that killing is never lawful beyond the battlefield and even comparing the practice to former President George W. Bush’s authorization of torture. But those criticisms are exaggerated and misguided. Killing and torture are fundamentally different. Governments have always killed the enemy during wars, and it is not unlawful to do so. No one accuses Abraham Lincoln or Franklin Roosevelt of “extrajudicial assassinations” because their troops killed tens of thousands of enemy soldiers without charges or trials. That the Confederate soldiers were American citizens doesn’t change that fact. And even in the absence of an existing war, and therefore outside any battlefield, states are permitted to use lethal force to respond to an imminent armed attack.

Thus, drone strikes against enemy fighters in Afghanistan, or even in the border regions of Pakistan that have become part of the battlefield, are not inherently illegal, so long as the latter are done with Pakistan’s consent. Nor is it wrong or unlawful to deploy a drone where there is no other way to halt an imminent attack.

But the white paper does not limit the president’s authority to kill to members of Al Qaeda and the Taliban, or to those planning an immediate attack. It maintains that the president can kill an American citizen who is not a member of Al Qaeda, not on a battlefield, not participating in hostilities and not engaged in or planning an attack against the United States when he is killed. What’s more, the White House evidently believes it can kill us in secret and never own up to the fact. It has steadfastly refused to officially acknowledge that it has killed anyone with a drone outside Afghanistan.

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So it won’t do to dismiss the drone program as illegal assassinations, full stop. A more nuanced critique is necessary. The program is fundamentally flawed in at least four respects:

1. The power to kill with drones should be governed by clear, transparent rules, not by a secret playbook. In the early days of the Obama administration, the drone program was entirely secret. Over time, administration officials have spoken in general terms about the legal standards they employ. But even after the white paper’s disclosure, much remains unclear. We don’t know, for example, what procedures are used to determine whether a person is properly placed on the “kill list,” nor even what standard of proof is required. Does anyone, for example, play the role of devil’s advocate, defending the absent target and questioning the government’s case? Surely if the president claims the power to kill any of us without trial, we have a right to know the standards and procedures he will use.

2. Killing in self-defense should always be a last resort. The white paper concedes, at least as to citizens, that a drone strike off the battlefield is appropriate only if the target poses an imminent threat and capture is not feasible—the traditional requisites for self-defense. But it then says a threat can be imminent even if it is not immediate. It presumptively treats all operational leaders of Al Qaeda or its undefined “associated forces” as “continually” planning attacks and therefore always posing an imminent threat—even if they are sleeping. Anwar al-Awlaki, a US citizen killed by a drone in Yemen in September 2011, was reportedly on the kill list for more than a year before he was killed. How could he have posed an imminent threat for more than a year? The imminence requirement is designed to ensure that lethal force is a last resort; if no attack is on the horizon, there may be time to address the threat by less extreme means, such as capture and trial.

3. At least when it comes to American citizens, it cannot be constitutional for the president to deliberately kill and then refuse to acknowledge doing so. Unacknowledged detentions and killings were condemned as “disappearances” when Argentina’s military junta employed them in its “dirty war” in the 1970s. How can a government that is supposed to be of, by and for the people have the power to kill its own while keeping secret the fact that it has done so? Accountable and limited government begins with transparency.

4. The power to kill by remote control anywhere in the world should not unilaterally reside in the executive branch. The white paper dismissively claims that courts cannot second-guess the executive’s “predictive” judgments about national security. But courts already do this. The Foreign Intelligence Surveillance Court, composed of federal judges, reviews requests for search and wiretap warrants based on national security concerns. Those warrants by definition rest on predictive judgments about whether evidence relating to national security will be found. If we demand that a court authorize even a temporary wiretap, shouldn’t we also demand that a court review a decision to end a human life? Some have questioned the utility of a necessarily one-sided and secret warrant process, but warrants have served us well for centuries by interposing an independent decision-maker between the executive and the citizenry. Due process may require advance notice to the target in some instances and/or judicial review after the fact, as the Israeli Supreme Court requires. But we can’t leave this awesome power exclusively in executive hands.

Some object that since ordinary uses of armed force in wartime do not require this sort of public accountability, judicial review and due process, those requirements ought not to apply to drone strikes. During World War II, FDR did not have to issue criteria for a kill list, involve courts or publish his officers’ specific rules of engagement. But the technology of drones, coupled with the murky scope of this “war,” make those features essential now. Because they permit the killing of people without putting boots on the ground or risking American lives, and because they are, at least in theory, surgically precise, drones reduce the considerable practical disincentives to lethal force.

The ambiguous definitions of the scope of this war and even of the enemy risk establishing a precedent that drones can be used against anyone a government considers even a long-term threat. The administration claims still to be operating under the 2001 Authorization for Use of Military Force (AUMF), but that sanctioned military force only against those who attacked us on 9/11 and those who harbored them. In Yemen and Somalia, we have killed members of Al Qaeda in the Arabian Peninsula and Al Shabaab. Neither organization even existed in 2001, and Al Shabaab seems principally focused on domestic Somali grievances. Does the AUMF authorize the government to kill by remote control any group that says it is inspired by Al Qaeda? If so, has President Obama resurrected the “global war on terror” that he previously rejected?

Much like transnational wars against nonstate actors, drones challenge traditional legal and ethical categories. The root of the problem is that they make it too easy to kill. We need not and cannot forswear their use. We should not confuse them with assassinations and torture. But we must insist on clear restrictions, transparent practices, independent oversight and accountability—in short, the rule of law. In his only major presidential speech on national security, in May 2009, President Obama promised that he would fight terror within the confines of our values and the rule of law. What happened to that promise?

Even if we like President Obama, do we want him to be a one-man death panel? asks Katha Pollitt.

David ColeTwitterDavid Cole, national legal director of the ACLU, is legal affairs correspondent for The Nation and a professor at Georgetown University Law Center. He is the author, most recently, of Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law (April 2016).